Legal Opinion

City of Fond du Lac v. Bonesteel

Wisconsin Supreme Court

Decided September 15, 1867PublishedCited by 2 opinions

APPEAL from the Circuit Court for Fond du Lae County. Summons as in an action for relief; the complaint (served therewith) alleging that, on etc., defendant was mayor of the plaintiff city, and plaintiff delivered to him to sell in New York city and pay the proceeds to plaintiff, 2,013 shares of certain railroad stock, of the value of $100,000; that defendant afterwards, on etc., sold the stock, and received therefor $33,594; that afterwards, on etc., plaintiff duly demanded…

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APPEAL from the Circuit Court for Fond du Lae County. Summons as in an action for relief; the complaint (served therewith) alleging that, on etc., defendant was mayor of the plaintiff city, and plaintiff delivered to him to sell in New York city and pay the proceeds to plaintiff, 2,013 shares of certain railroad stock, of the value of $100,000; that defendant afterwards, on etc., sold the stock, and received therefor $33,594; that afterwards, on etc., plaintiff duly demanded of him the latter sum, which he wholly neglected and refused to pay, and has unlawfully converted and disposed of the…

1Opinion of the Court

The following opinion was filed at the January term, 1867.

DowNER, J.

The appellant contends that his motion to set aside the complaint should have been granted, because it does not follow the summons. It is insisted by the respondent that if there is any such irregularity, it was waived by a general appearance of the appellant (defendant below). But a general appearance only waives defects in the sum*253mons. It is true there are some New York decisions (6 How. Pr. R., 439; 8 id., 346; 9 id., 447) to the effect that a summons in every respect regular on its face is made defective or irregular by a…

2Cases cited2 opinions

  1. Durfee v. HeemstreetNew York Supreme Court · 1828
  2. Ball v. PresidentNew York Supreme Court · 1826

3Cited by2 opinions

  1. Ryan v. SpiethMontana Supreme Court · 1896
  2. Berry v. BingamanSouth Dakota Supreme Court · 1891

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